Illinois Court Says State's Cyberstalking Law Is Unconstitutional

from the also,-its-analogstalking-law dept

One of several problems with hastily-enacted laws meant to deal with advances in technology is that they often skip a step or several when being written. In many cases, the step skipped is an important one: the consideration of intent. By crafting laws that cater to subjective views of a situation -- whether it's meant to address cyberbullying or other forms of online harassment -- the laws blow past, sometimes intentionally, the requirement that there be malicious intent behind the targeted actions.

This has led to courts striking down newly-enacted laws as unconstitutional because they have skipped this step. Without this requirement in place, the laws curb free speech by enacting new limits on First Amendment expression based almost solely on subjective reading of the allegedly "criminal" content.

The Illinois Appeals Court is the latest to find a cyberstalking/harassment law invalid. The problem here is, again, the lack of a mens rea requirement. (h/t Orin Kerr)

The stalking case that triggered this review [PDF] deals with a former intern at a Christian radio station who apparently couldn't take "no" for an answer, or just genuinely had no idea how to obtain a definitive answer on his current job status. It all depends on who you ask. But as the law was written, the only person who needed to be asked was the complainant.

Defendant was charged by indictment with two counts of stalking and two counts of cyberstalking. In particular, the indictments collectively alleged that defendant: (1) called Sonya Blakey on the telephone; (2) sent her emails; (3) stood outside of her place of business; (4) entered her place of business; and (5) made multiple posts on his Facebook page threatening Blakey’s coworkers and expressing his desire to engage in sexual acts with Blakey. The indictments further alleged that defendant “knew or should have known” that his conduct “would cause a reasonable person to suffer emotional distress” and “fear for her safety.”

The indictment makes the defendant [Walter Relerford] sound more than a bit dangerous. The actual events that triggered this prosecution, however, are not nearly as evil-sounding. Blakey testified that multiple emails were sent not just to her, but other employees at the station -- all of them inquiring about the possibility of working there again after being turned down for an open intern position. She also testified that the incident in which the defendant "stood outside her place of business" involved nothing more than him waving up at her from ground level -- at a complex where multiple businesses, including several restaurants, were located.

The defendant's unexpected visit to the business was just that. Blakey may have subjectively experienced shock or fear, but the defendant left peaceably when escorted from the building and made no movements or statements suggesting he posed any threat to Blakey.

The Facebook posts made by the defendant were a bit more disturbing, containing thinly-veiled threats related to Blakey and the station's refusal to give him a job. There were also comments of a sexual nature made. Also included were other things entirely unrelated to anything -- like a group of "Chinese people" talking about "killing everyone at the station" and the insistence that "the entire Michigan State football team from 1993" be immediately "buried" if he did not have "Sonya [Blakey's] vagina in his mouth" by the end of the week.

These posts were definitely more disturbing than anything Relerford had done prior. But they weren't tagged with Sonya Blakey's name (making them visible to her) and no attempt was made by Relerford to ensure Blakey saw them. Instead, a friend of Blakey's saw the posts and emailed them to her.

Blakey admitted during testimony that Relerford had never once threatened her directly. Instead, everything was based on how she felt about the interactions. And the way the law is crafted allows a single subjective viewpoint to steer prosecution… which is exactly what the court finds unconstitutional about the law.

The laws (both the regular stalking and cyberstalking version) had survived challenges before. But under the Supreme Court's Elonis decision, they no longer withstand Constitutional scrutiny.

As noted above, defendant was sentenced for violating subsection (a)(2) of the general stalking statute. That section criminalizes a wide range of conduct, including communicating to or about a person. But, like the statute at issue in Elonis, “communicating something is not what makes *** conduct ‘wrongful’ ” under subsection (a)(2). (Emphasis in original.) Id. at ___, 135 S. Ct. at 2011. Instead, an individual’s conduct is criminal under section (a)(2) if, and only if, the defendant “knows or should know” that it would cause “reasonable person” to “suffer *** emotional distress.” 720 ILCS 5/12-7.3(a)(2) (West 2012). Subsection (a)(2) contains no requirement that the individual actually intend to inflict emotional suffering on a person. Thus, as currently drafted, subsection (a)(2) bypasses “ ‘the conventional requirement for criminal conduct–awareness of some wrongdoing’ ” in favor of a reasonable person standard of criminality.

Which leads to this determination about the state's older stalking law…

Accordingly, we hold that subsection (a)(2) of the general stalking statute, of which defendant was convicted and sentenced, lacks a mens rea requirement and is therefore facially unconstitutional under the due process clause of the fourteenth amendment.

As well as its cyber version:

Subsections (a)(1) and (a)(2) of the cyberstalking statute are virtually identical to subsections (a)(1) and (a)(2) of the general stalking statute. The principal difference is that the cyberstalking statute specifies that the defendant’s course of conduct involved electronic communications. It necessarily follows then, that subsections (a)(1) and (a)(2) of the cyberstalking statute, which also lack a mens rea requirement, are facially unconstitutional under the due process clause of the fourteenth amendment for the same reason that subsections (a)(1) and (a)(2) of the general stalking statute are unconstitutional.

The court doesn't instruct the legislature to fix the state's stalking laws, but it obviously can't leave the statutes the way they are and hope to prosecute anybody under them.

Reader Comments

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Re: Malicious advertisements on Techdirt

Im not sure i understand the scope of the intent requirement. As I have read it on previous similar articles there needs to be intent to express the harassing behavior at the Harassed. So you have to actually talk shit to their face, not just talk shit in general.

But the discussion on the vanilla Stalking law seems to suggest you need intent to Harass or Cause emotional distress. So does this mean someone without the emotional/empathic ability to recognize the potential for harm can't ever be convicted of harassment?

Re:

I believe even intent may be subjective. Taking the case described for example, even if the comments may be somewhat disturbing to the rest of us I've said plenty of times I'd love to put a bullet to someone's head when talking to people I'm familiar with and it doesn't mean jack shit about myself (no, I would not do it and I don't support anybody having the power to do it even though I believe there are quite a few that do deserve and probably there are those who think the same of me). Among other nasty things of course.

So even if what he said do sound disturbing it should bear no weight in any law or judicial decision if it's yanked out of the context (a personal conversation with that pseudo-friend who was enough of an asshole to send the messages to the woman).

Re:

The distinction here is extremely important. The fact that someone may choose to feel emotionally distressed by something I do (and it absolutely is a choice. That doesn't mean the choice isn't valid, but it must be seen for what it is) is never a sufficient reason to punish me.

The first amendment was particularly crafted with this necessary understanding. Indeed the whole point of that right is so that I CAN say things other people don't like that I feel need to be said. I should never intend to harm someone else, but I absolutely should be free to do things others don't necessarily like.

As for your example with the person who cannot recognize that what they're doing is wrong, that is correct. But there are other things we've accepted that need to be done to help both those people and those around them. While I have some serious issues with how far we sometimes go in terms of when it's ok/necessary to take people's freedom from them, that is one example where someone just honestly needs help.

Re: Re:

You don't "choose" to feel distress, it's a reflex. I have never chosen to feel anything in my life, and doubt that you have either.

RE: this clown; if he didn't contact her or her family or friends directly with his trash talk in order to harass her it's only trash talk.

If someone does trash talk about you online AND it's not causing problems for you, either block or ignore it. Until it starts causing real, quantifiable, called-into-the-office-at-work-and-asked-for-an-explanation trouble for you, don't worry about it.

Re:

I think you're misunderstanding intent.

One doesn't need empathy to know that smashing someone's face with a hammer will cause them harm.

The law is saying, you can't criminalize something simply because it made someone feel bad, an actual crime needs to occur. That's the "intent" that's to be proved - that the person actually did something wrong.

Waving at someone is not necessarily a crime or wrong. You feeling harassed doesn't automatically turn waving into stalking. The intent you prove that turns the waving into stalking is demonstrating that unwanted letters were sent to you, your private home address/phone numbers are found and the person showed up there, they talked to your friends about where you work, then they showed up and waved. Now you've got intent that the waving was criminal (stalking) regardless of how empathetic the stalker may be.

Re: Re:

I have been told by those more knowledgable than me that people with certain mental abnormalities (such as certain places on the autism spectrum) will not ever realize that people will find certain interactions harmful or unwanted. Meaning such a person could certainly Harass and Stalk me and even after it is explained to them will be unable to understand that the attention is unwanted. Is your understanding of intent such that the person I have described can't be charged with intent? By my previous understanding they are directly attempting to contact that person and are actively seeking that person out, so they could be charged. But the new definition of intent I read suggests not.

God help us when idiot legislators write up laws to pander to different groups. Meanwhile this strange fellow is being buried by this while he obviously has other challenges, this isn't an effective therapy for him though.

Nothing but expenses, time wasted, lives wrecked. Come on illinois, knock it off... and the other anti-bullying legislation. There's a way to write these laws but obviously they're trying to get away with the half-assed effort

"Intent" is rarely provable and making laws revolve around it is a VERY slippery slope

Which is why if you are cited for a traffic violation, it makes no difference if you claim that you "really wanted to not go through the red light, but a voice in my head made me do it". You did it, it endangers others, it's against the law, you're guilty.

Same thing with the recent article about recording someone on the phone without their knowledge. If you seriously think that people should be able to do that on some silly presumption that it must be "innocent by default", then I think you need to get your head examined.

Unfortunately what thousands of years of recorded human civilization has taught us is that people are self-interested by default and given free reign to exploit others, they will exploit others with regularity. In many cases a law that occasionally inconveniences upstanding people is far preferable to no law (assumes everyone is innocent, or clueless legislators don't pay attention to new developments in society and/or technology) and which in turn creates more victims every day.

Seems obvious to me. I tend to dislike easily avoidable damaging, maiming and killing of people.

Re:

Criminal law goes the other way though. They are willing to accept some false negatives (i.e. criminals going free) in order to have less false positives (i.e. innocent people being punised).

Traffic rules are not a very good example because they are based on different assumptions. They are enforced even if your behaviour had no tangible influence on any other person. You can get punished for running a red light even if it's in an open area in the middle of the night and you were able to see perfectly that there was no other traffic.

That is not how criminal law works and for good reason. If you want to reserve the right to punish citizens you need to be believable and nothing would erode trust in justice more than punishing the innocent.

You say requiring intent makes laws hard to use and make for a slippery slope. The reality is that a lot of criminal laws that consider intent. For example the distinction between manslaughter and murder or in drug cases where the intent to distribute has a big influence on punishment. The other way around punisments are often lessend if the defendant was acting on impulse.

In law a lot of time is devoted into building models on how to best determine intent and subjective mindesets during the illegal act in order to get an objective and consistent method of determining things like intent and affect. It is therefore wrong in my opinion to speak of a slippery slope